Naim ‘Norman‘ Mouracade, Independent Executor of the Estate of Arthur M. Wilkins, Deceased, Appellant v. Joe Watson and Joe Watson, Inc., Appellees (2016)

MEMORANDUM OPINION

Naim “Norman” Mouracade, independent executor of the estate of Arthur Wilkins, appeals the trial court's summary judgment in favor of Joe Watson and Joe Watson, Inc. For the reasons that follow, we affirm.

In 2003, Wilkins and Watson entered into an oral agreement to have shoes, handbags and other clothing accessories manufactured for sale to Mary Kay Inc. sales directors, employees, and independent contractors.  The items would be manufactured in Spain and shipped to Florida to Joe Watson Inc. for sale and distribution.  After deducting costs and a 10% commission to Joe Watson Inc., Wilkins and Watson agreed to share the profits equally.

From December 2003 until August 2004, appellees mailed Wilkins “proformas” detailing the products ordered from Watson Inc. In late August, appellees mailed Wilkins an accounting of the sales and costs to date.  The following month, Wilkins received a check for $10,500.85 which he cashed.  According to Watson, Wilkins did not question the accounting or complain about the amount of the check.

In January 2006, Wilkins passed away.  Five months later, Mouracade, acting as independent executor of Wilkins's estate, sued appellees for breach of contract.  In August 2006, Watson Inc. sent an accounting for the final five months (September 2004 through January 15, 2005) which indicated Watson and Wilkins were owed an additional $3,580.80 ($1,790.40 each).  According to Watson's January 2010 affidavit, this check was sent to Mouracade.  Watson also sent Mouracade a $70 check for a “discrepancy in the proformas” revealed during discovery.

During the years that followed, the lawsuit progressed slowly.  From 2007 to 2009, appellees served requests for admission, many of which Mouracade refused to answer.  When appellees attempted to depose Mouracade, he again refused to answer many questions.  In October 2009, the trial court granted appellees' motion to compel, ordered Mouracade to respond to discovery, and deemed twelve of the requests admitted, including admissions that Mouracade had no evidence of any wrongdoing, in the form of improper charges, unauthorized expenses, or charges for services not actually performed or needed.  After appellees filed a second motion to compel, Mouracade was ordered to pay sanctions for refusing to comply with the trial court's order.

In January 2010, appellees filed a combined no-evidence and traditional motion for summary judgment, which they supplemented four years later, on August 21, 2014.  Following the supplementation, Mouracade filed a motion seeking to set aside or revise his October 2009 deemed admissions and a motion for leave to file a response to the motions for summary judgment.  He also filed his fourth amended petition in which he asserted claims for charges not reasonable or necessary, breach of contract, money had and received, fraud, conspiracy to defraud, violation of fiduciary or confidential relationship, and unjust enrichment, and sought an accounting, declaratory relief, exemplary damages, and attorney's fees.  Each claim stems from the oral agreement between Wilkins and appellees to purchase bags, shoes, and other accessories for resale to Mark Kay executives.  The crux of those claims is that appellees did not tell Wilkins in advance of the costs they would charge for their services, said expenses “were neither reasonable nor necessary,” and the actual charges resulted in undisclosed profits to appellees.

On September 11, the trial court held a hearing on the motions.  With respect to the deemed admissions, the trial court granted Mouracade's request to set aside or revise the admissions and the record contains Mouracade's First Supplemental Response to Request for Admissions, filed September 15, 2014.  In that response, however, he again admitted each of requests that had previously been deemed admitted by the trial court.  By order dated September 26, the trial court granted appellees' motion for summary judgment, as supplemented, and dismissed Mouracade's claims.  This appeal followed.

The essence of Mouracade's complaint is that the trial court erred by granting summary judgment.  Primarily, he argues appellees could not have prevailed under either a no-evidence or traditional summary judgment standard because he presented certain evidence raising fact issues and his fourth amended petition raised causes of action not specifically addressed by appellees' motion for summary judgment.

We review the granting of a motion for summary judgment de novo.  Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.2013).  For defendants to prevail on a traditional motion for summary judgment, they must either disprove at least one element of each of the plaintiff's claims as a matter of law or conclusively establish all elements of an affirmative defense to the claims.  Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex.1996).  If the defendants' motion and evidence facially establish their right to judgment as a matter of law, the burden then shifts to the nonmovant to raise a genuine issue of material fact sufficient to defeat the summary judgment.  Wilbert Family Ltd. P'ship v. Dallas Area Rapid Transit, 371 S.W.3d 506, 510 (Tex.App.Dallas 2012, pet. dism'd).  When reviewing a motion for summary judgment, the court takes the nonmovant's evidence as true, indulges every reasonable inference in favor of the nonmovant, and resolves all doubts in his favor.  Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005).

A no-evidence summary judgment is reviewed under the same legal sufficiency standard as a directed verdict.  Merriman, 407 S.W.3d at 248.  Under that standard, we consider the evidence in the light most favorable to the nonmovant, crediting evidence a reasonable jury could credit and disregarding contrary evidence and inferences unless a reasonable jury could not.  Id. The nonmovant has the burden to produce summary judgment evidence raising a genuine issue of material fact as to each challenged element of his cause of action.  Tex.R. Civ. P. 166a(i).  A no-evidence challenge will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.  Merriman, 407 S.W.3d at 248.

In his fourth amended petition (the live pleading at the time), Mouracade asserted appellees did not tell Wilkins in advance of the costs they would charge for their services, these expenses “were neither reasonable nor necessary,” the actual charges resulted in undisclosed profits to appellees, and appellees committed fraud by failing to disclose the true costs to Wilkins.  In their motion for summary judgment, appellees argued Mouracade had no evidence of any (1) unauthorized charges or expenses, (2) inflated charges, and (3) services not actually performed or not needed for which Watson charged.  Appellees also argued Mouracade had no evidence Wilkins relied on Watson's representations or that the two men had a partnership, two causes of action pleaded previously but abandoned in the fourth amended petition.

To defeat appellees' no-evidence motion, Mouracade had to produce more than a scintilla of probative evidence that the actual charges incurred by appellees were less than those represented in the proformas, the services charged were unauthorized, unnecessary, or not rendered, or Wilkins relied on Watson's representations and those representations were false.  In his response to the summary judgment motion and evidence, Mouracade asserted he had proof appellees “lied about the number of shoes and handbags being imported.. as well as lying about the price of the shoes and the price of the handbags” so they “could steal money from” Wilkins.  As evidence, Mouracade produced a U.S. Customs employee's affidavit with thirty-six pages of “attached records” as well as his own affidavit and that of Merl Justman.  The trial court, however, sustained appellees' objections and struck the thirty-six-page U.S. Customs record and large portions of both affidavits.  The portions of the affidavits that remain do not show a fact issue about the charges, services, or representations.  Moreover, although Mouracade claimed Watson “lied” about the quantity and prices of goods imported, he failed to produce summary judgment evidence in support of these claims.  Because no evidence supports the bases for Mouracade's causes of action against appellees, we conclude the trial court did not err by granting the no-evidence summary judgment.

To the extent Mouracade contends the no-evidence summary judgment does not address all of his claims, appellees conclusively established they were entitled to traditional summary judgment because they established as a matter of law that all costs and expenses were properly allocated and all profits from the venture were properly accounted for and distributed equally between Wilkins and Watson.  In support, appellees attached Mouracade's deemed admissions and Watson's affidavit that says he and Wilkins agreed to pay Watson Inc. to have shoes, handbags, and other accessories manufactured in Spain, then offered for sale to independent sales directors of Mary Kay, splitting the profits equally.  Watson attached a copy of a memorandum he sent Wilkins setting out the costs to manufacture each shoe and handbag type.  Also attached were copies of six “proformas” detailing the products ordered from Watson Inc. over a seven-month period in 2004 and an August 30, 2004 breakdown of sales and expenses to date, indicating Wilkins and Watson would each receive $10,500.85.  Finally, Watson attached an August 2006 accounting showing a final disbursement of $1,790.79 to Watson and Wilkins.

Because appellees presented evidence establishing Wilkins was paid everything he was owed under the terms of the oral contract, the burden shifted to Mouracade to raise a genuine issue of material fact sufficient to defeat the summary judgment.  Mouracade's summary judgment evidence, as discussed above, does not do so.  The limited portions of the affidavits remaining after the trial court sustained appellees' objections do not challenge the substance of Watson's affidavit, nor do they raise any issues of material fact regarding the contract or appellees' performance under the contract.  Under these circumstances, we conclude the trial court did not err by granting appellees' traditional motion for summary judgment.  We overrule Mouracade's two issues.

In reaching this conclusion, we reject Mouracade's argument we must remand this case because he pleaded additional claims in his fourth amended petition, including a claim for breach of contract, after appellees filed their supplemental motion for summary judgment.¹  We note that, in his response to appellees' summary judgment motions, Mouracade stated appellees' motion “addresses issues related to no evidence of breach of contract” while the supplemental motion addressed fraudulent misrepresentation and partnership.  Thus, he interpreted appellees' summary judgment motion as addressing a breach of contract claim and responded accordingly.

Furthermore, even assuming he had new pleadings asserted in the fourth amended petition, Mouracade conceded “[a]ll of Plaintiff's causes of action in [his] last live pleading are the result of [appellees'] fraudulent conduct,” namely failing to tell Wilkins what they would charge for their services and charging expenses that “were neither reasonable nor necessary.”  We may affirm summary judgment on a cause of action not specifically addressed in a summary judgment motion if the elements urged in the motion and established by summary judgment proof dispose of one or more of the elements of the unmentioned cause.  See Zaragosa v. Flynn, 266 S.W.3d 614, 621 (Tex.App.El Paso 2008, no pet.) (summary judgment may be affirmed on cause of action not specifically addressed in summary judgment motion, if elements urged in motion and established by summary judgment proof dispose of one or more of elements of unmentioned cause).  Because Mouracade had no evidence of wrongful, excessive, or unauthorized charges or of appellees' failure to disclose what they would charge, reversing the trial court's judgment to address other causes of action sharing these elements would be meaningless.

We affirm the trial court's judgment.

FOOTNOTES

1.   The record does not contain all previous pleadings.  It appears, however, that Mouracade initially sued appellees for breach of contract but dropped that cause of action in a subsequent pleading to focus on fraud, breach of fiduciary duty, and the existence of a partnership.

Opinion by Justice Francis